State v. Brown
| Decision Date | 24 June 1933 |
| Docket Number | No. 32805.,32805. |
| Court | Missouri Supreme Court |
| Parties | STATE v. BROWN. |
Appeal from Circuit Court, Callaway County; W. C. Hughes, Special Judge.
Floyd Brown was convicted of murder in the second degree, and he appeals.
Reversed and remanded.
Don C. Carter, of Sturgeon, for appellant.
Roy McKittrick, Atty. Gen., and Franklin E. Reagan, Asst. Atty. Gen., for the State.
On January 5, 1932, the grand jury of Boone county, Mo., returned an indictment against the appellant Floyd Brown, Ola Lindsey, Roy Stephens, and Norris Stephens, charging them with murder in the first degree for the killing of Omar Cook, in Columbia, Mo., on November 30, 1931. The appellant and Lindsey were confined in the Boone county jail at the time awaiting trial on charges of felonies. On that date they escaped from the jail, and at the time of escape they beat and clubbed a fellow prisoner, Omar Cook, with a stove shaker and a stick of wood, because he was trying to prevent their escape from jail. Cook died later that night. Prior to the jail break, the appellant, Lindsey, and others in the jail talked over plans for a jail break and the possibility of having to take two or three lives, including that of Cook, in order to assure their escape. The appellant and Lindsey fled to Texas, where they were arrested while going under assumed names, and returned to Missouri. The appellant escaped and fled a second time and was arrested near Gainesville, Mo. Appellant took a severance and a change of venue was granted to Callaway county, where the late Hon. H. A. Collier was disqualified and the case was tried before Hon. W. C. Hughes, judge of the Eleventh judicial circuit. On June 4, 1932, the jury returned a verdict finding the appellant guilty of murder in the second degree and assessing his punishment at fifty years in the penitentiary. The appellant has duly appealed to this court. This is a companion case of State of Missouri v. Ola Lindsey, 62 S.W.(2d) 420, argued in this court at this term. Other necessary facts to a decision of this case will be found in this opinion.
I. The first assignment of error is that the trial court erred in permitting the prosecuting attorney to read the indictment to the jury in this case at the beginning of the trial. The pleadings are addressed to the court and not the jury. The knowledge that a jury can properly have as to the issues of fact which they are to determine, they must get from the written instructions of the trial court. We can see no useful purpose in reading the indictment to the jury in a criminal case, yet we do not believe it to be prejudicial error, and we have been unable to find a criminal or civil case in which the judgment of the trial court has been reversed because the pleadings were read to the jury at the beginning of the trial.
II. The appellant assigns as error the failure of the trial court to instruct the jury upon the subject of the good character of the appellant after he had put it in issue. The appellant produced four witnesses who testified that his reputation was good as to being a law-abiding citizen, while the state produced five witnesses who testified to the contrary. In State v. Hayes, 295 S. W. 791, we held that the reputation of the accused for being a peaceable and law-abiding citizen was the only capacity in which his reputation may be shown in defense of a charge of assault or murder. In the case at bar there was no request for an instruction upon good character, but the failure to give this instruction was called to the attention of the trial court in the appellant's motion for a new trial. Section 3681, R. S. Mo. 1929 (Mo. St. Ann. § 3681), makes it mandatory upon the trial court to "instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt." In State v. Baird, 288 Mo. 62, 231 S. W. 625, 627, 15 A. L. R. 1035, we held that "whenever necessary," as used in this statute, means "whenever there is any substantial evidence of general reputation of such character offered in evidence." We believe that there was substantial evidence offered in this case as to the appellant's general reputation as to being a law-abiding citizen, and, therefore, tends to render it less...
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State v. Lindsey
... ... first degree. His punishment was fixed at imprisonment in the ... penitentiary for life. From the sentence and judgment he ... appealed. The charge of murder in the first degree was lodged ... by a joint indictment against appellant, Ola Lindsey and ... Floyd Brown, Roy Stephens and Norris Stephens for the death ... of Omar Cook who was beaten with a stick of wood and an iron ... stove shaker in the county jail of Boone County at Columbia ... on November 30, 1931. Appellant, Lindsey, and Floyd Brown, ... Norris Stephens and the deceased Cook were ... ...
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State v. Finn
...that respect be no longer followed. Even if the subject matter of instruction G had been but collateral to the main issue, State v. Brown, Mo.Sup., 62 S.W.2d 426, 427, State v. London, Mo.Sup., 295 S.W. 547, loc. cit. 549, and State v. Lackey, 230 Mo. 707, loc. cit. 720, 132 S.W. 602, inasm......
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State v. Lindsey
... ... His punishment was fixed at imprisonment in the penitentiary for life. From the sentence and judgment he appealed. The charge of murder in the first degree was lodged by a joint indictment against appellant, Ola Lindsey and Floyd Brown, Roy Stephens and Norris Stephens for the death of Omar Cook who was beaten with a stick of wood and an iron stove shaker in the county jail of Boone County at Columbia on November 30, 1931. Appellant, Lindsey, and Floyd Brown, Norris Stephens and the deceased Cook were prisoners in the jail at the ... ...
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State v. Rhoden
...This was a collateral matter, one as to which, absent a request by the defendant, an instruction was not required. See State v. Brown, Mo.Sup., 62 S.W.2d 426. Nor did he assign the alleged error in his motion for new trial. State v. Loston, Mo.Sup., 234 S.W.2d The nature of most of defendan......